Wetlands: Part Two. New York State Regulation of Wetlands.

My last blog entry discussed what wetlands are and why they are so important. This blog entry talks about how they are regulated in New York State.

Wetlands are regulated by State and Federal law. Federally, wetlands are protected by the U.S. Army Corps of Engineers (“ACOE”) under Section 404 of the Clean Water Act. In New York, they are protected under the Freshwater Wetlands Act (“FWA”) of 1975. The implementing regulations of the FWA are at 6 N.Y.C.R.R. Parts 663 – 665.

The NYS Department of Environmental Conservation (“DEC”) regulates freshwater wetlands “to preserve, protect and conserve” them and their benefits. DEC classifies them at Part 664.5 into four categories: I, II, III or IV. Class I wetlands are the most valuable. They often feature habitat of endangered or threatened species and, therefore, are the most protected. Class IV are the least valuable and least protected.

Not every wetland is regulated under State law. To be protected, a freshwater wetland must be 12.4 acres or larger, except in the Adirondack Park, where a lower threshold applies. Smaller wetlands may be protected, too, but only if they are considered of unusual local importance. Around every wetland is an “adjacent area” of 100 feet. This adjacent area also is regulated to provide protection for the wetland.

Basically, DEC regulates certain activities in freshwater wetlands to prevent or mitigate impairment of wetland functions. The amount of regulation turns on the nature of the activity and its potential effect on a wetland.

For instance, activities like normal agricultural practices, harvesting of natural products and recreational activities (fishing, hunting, trapping, hiking, swimming, picnicking, or firewood collection) or routine maintenance (e.g., dock repair) are exempt from regulation. More invasive activities, which can adversely impact a freshwater wetland, are regulated. These activities typically include actions like construction, excavation, placement of fill, drainage, clear-cutting and application of pesticides and require a permit under the FWA.

If you plan to engage in a regulated activity and suspect you are near a regulated wetland, you need to know if you must have a permit. One way to find out is to review the DEC’s wetland maps and find your property. Check whether it is in, near or adjacent to a protected wetland. Remember that not all wetlands are protected by DEC, but most wetlands will come under the jurisdiction of the ACOE, whether protected by DEC or not.

If your property has a protected wetland on or near it, or your project looks like it comes within the area adjacent to the wetland, you may want to contact the DEC Regional Office where the property is located and request DEC to visit your site and mark the wetland boundary. You can hire a private consultant as well, but there likely will be a fee.

If your project involves a regulated activity, and it is within a freshwater wetland area, you will need a permit from DEC. Essentially, DEC’s permit standards require that impacts to wetlands be avoided and minimized, where possible. If the activity you propose will not seriously affect the wetland, then absent extenuating circumstances, DEC likely will issue a permit, possibly with various conditions. If your proposed activity will seriously affect the wetland, the benefits gained by allowing the action to occur must outweigh the wetland benefits lost before a permit can be issued. DEC often requires compensatory mitigation for significant impacts to wetlands before a permit can issue, such as creating or restoring wetlands to replace the benefits lost by the proposed project’s impact on the nearby wetland.

Getting a permit can be a tricky thing. In my next blog entry, I’ll discuss the permit application process.